Hall v Brambles Australia Limited; Butfield v John Lysaght (Australia) Limited; Dedousis v The Water Board

[1994] HCATrans 300

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No 5196 of 1993

B e t w e e n -

KEVIN WILLIAM HALL

Applicant

and

BRAMBLES AUSTRALIA LIMITED

Respondent

Office of the Registry

Sydney No Sl97 of 1993

B e t w e e n -

KEITH BUTFIELD

Hall 1 22/4/94

Applicant

and

LIMITED JOHN LYSAGHT (AUSTRALIA)

Respondent

•

Office of the Registry

Sydney No S129 of 1993

B e t w e e n -

GEORGE DEDOUSIS

Applicant

and

THE WATER BOARD

Respondent

Applications for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY. 22 APRIL 1994, AT 10.18 AM

Copyright in the High Court of Australia

MR A.F. PUCKERIDGE, QC: In those matters I appear,

Your Honour, for the applicants. In the matter of

Hall, I appear with my learned friend,

MR M.N. THOMPSON; in the matter of Butfield, with

my learned friend, MR B.J. ROBINSON and in the

matter of Dedousis, with my learned friend,

MR K.W. ANDREWS. (instructed by Maurice May & Co)

MR B.M. TOOMEY. QC:  May it please Your Honours, in Hall v

Brambles I appear with my learned friend,

MR D.R. RUSSELL, for the respondent. (instructed

Hall 2 22/4/94

by Moray & Agnew) In Sutfield, I appear with my

learned friend, MR A.J. BARTLEY. for the

respondent. (instructed by A.O. Ellison & Co)

MR D.J. BROGAN:  If it please the Court, in the matter of

Dedousis, I appear for the respondent. (instructed

by J.A. Franklin, the Water Board Legal Services

Branch)

MASON CJ: Hollins v Commercial Minerals Limited & Ors and

Hollins v Auqal Pty Limited & Ors is first in the list but Hollins has some other matters in it and

it did seem to us that it would be convenient, in

the first instance, to hear arguments in the three
cases which do not have the additional
complications that appear from the proposed notices
of appeal in the Hollins applications. But I

hasten to say, the Court would not give a decision

on the applications that have been called on

without hearing argument from counsel in Hollins.

Yes, Mr Puckeridge.

MR PUCKERIDGE:  If the Court pleases, I understand that

dealing with the first matter, which has been

mentioned, that is the matter of Hall v Brambles

Limited, that matter raises separate issues to the

matters of Dedousis and Sutfield, which is more

concerned with questions of cause within the

meaning of section 60F.

DAWSON J: That raises the question of whether section 60F

is applicable in any event, does it not?

MR PUCKERIDGE:  Yes, and also, Your Honour, then, in

relation to the matter of Hall, there are two

matters which we would submit are certainly of general importance. The first matter which we

perhaps might refer to is the question of the

potential benefit which was referred to by the

court, because that is the benefit of determining

whether or not the period between 1981 and 1982,

which the court went back to - - -

MASON CJ:  Mr Puckeridge, would it not be better for you to

proceed in the first instance with the argument on

the question which is common to the three cases,

deal with that in the first instance, and then come

back to what I might call the additional factor or

factors in Hall. Dedousis is the simplest of the

cases, is it not?

MR PUCKERIDGE:  Yes, Your Honour, Dedousis is the simplest,

and probably Sutfield, and then there is the

question of Hall. The common element in Hall -

what is sought Hall - is the question of what is

the limitation period. Section 60I(l)(a), at the

Hall 22/4/94

end of the section, the concluding sentence of

60I(l)(a), which was a matter which was commented

on by the Chief Justice in Wootton's case, refers

to:

at the expiration of the relevant limitation

period or at a time before the expiration when

proceedings might reasonably have been

instituted -

and the court has determined in Hall's case and all
other cases, that the "relevant time", as referred

to in section 60F, is the relevant limitation

period or at a time before the expiration when

proceedings might reasonably have been instituted.

DAWSON J: In other words, they have transposed I's test

to F.

MR PUCKERIDGE: Yes, Your Honour.

DAWSON J: Well now, is there not a preliminary question,

whether F applies at all - - -

MR PUCKERIDGE: Correct.

DAWSON J:  - - - in terms of purpose, and whether I applies

at all, or whether neither applies.

MR PUCKERIDGE: Whether neither applies.

DAWSON J: So that the latency of the injury for the

three-year period we are concerned with is

irrelevant; is that not the basic question?

MR PUCKERIDGE:  They are the problems, yes, Your Honour.

DAWSON J: Could you address yourself to that?

MR PUCKERIDGE:  The Court of Appeal, in Hall's case simply

looked at the relevant time, being as described in

the concluding sentence in section 60I(a), looked

at the question of the awareness of knowledge in

1988; went back six years from there, then looked

at the question between 1981 and 1982, because the

applicant had commenced employment in a noisy

environment in 1981, and then determined that the

question, in relation to that period, came to the question of potential benefit. But what has been

put by Your Honour is correct. Hall's case, in

coming to the question of the limitation period as

being the relevant time, does raise matters which

come at the end of the argument, to some extent,

namely whether or not it should be included in

section 60F, or whether or not 60F applies at all.

Hall 4 22/4/94

MASON CJ: Well now, perhaps you might commence by

endeavouring to convey to us what you say is the

relationship between these various sections,

commencing with section 60F, going on to 60G, 60I

and the provisions of the fifth schedule. On the

face of it, looking at these provisions, I find it

rather difficult to fit them all together. Now,

perhaps you can throw a ray of illuminating light

on it.

MR PUCKERIDGE:  It would be nice if one could do that,

Your Honour, and we will certainly endeavour, as

best as one can in the situation. The easiest way

to deal with the situation is to refer to the

argument which was raised in Plumb's case, that, in
fact, so far as any action under clause 4(4)(b) of

Schedule 5 is concerned, a clause 4(4)(b) action

really has no application at all to subdivision 3,

section 60F, and that all one has to look at is, in

relation to any such action, that is an action

which accrued before 1 September 1990, is whether

or not it is just inequitable to extend time - - -

DAWSON J: That is for a period of three years after - - -

MR PUCKERIDGE: That is for the period three years after,

and that argument has been disapproved of, or, that

interpretation - - -

DAWSON J: The trouble with it is that it completely

ignores section 60F, and means that for that

three-year period, it would not matter whether the

injury was latent, or not, in a subdivision which

provides for an additional discretion for an

extension of time for latent injury, et cetera.

MR PUCKERIDGE:  And also, a trouble which had been noted, in

Plumb's case, is the question in the schedule

itself - Schedule 5 - there is also reference to the tag - if it might be called that - of latent injury. It also refers to that.

DAWSON J:  I am sorry, I do not follow that.

MR PUCKERIDGE: Schedule 5 - - -

DAWSON J:  I see, it has.

MR PUCKERIDGE: Schedule 5, itself, when it was introduced;

that is, the heading just above clause 4, again

adopts a phrase:

Existing causes of action for personal

injuries may be extended where latent injury

etc -

which is, again, a similar term, or a similar

heading to subdivision 3, and which led the court

Hall 22/4/94

in Plumb's case, as one of the factors, to pointing

out that Schedule 5 cannot be read as a code in

itself, separate and apart from 60F, and then, in

relation to section 60F, is the question of

relevant time. There is, in fact, no date at all

as to relevant time. Again, in Plumb's case, how

it was interpreted, or how the sections were linked

up, it could be said, is that His Honour

Mr Justice Handley, in Plumb's case, came to the

view that an action under clause 4(4)(b) would only

have a restraint by virtue of the provisions

of 60I(l)(b).

In other words, the time restraint, referred to in 60I(l)(b), had no application in respect of

an action which accrued before 1 September 1990,

ie, an action under clause 4(4)(b). But His Honour

Mr Justice Handley said that section 60I(l)(a) was

incorporated within the meaning of 60F, as to

relevant time, and he specifically indicated - it

was in a very short sentence, Your Honour, and in

the judgment of Mr Justice Handley, in which he

said, at page 369A to B:

But, in my opinion the terms of cl 4(1) are to

be explained by the need to apply s 60G to

pre-September 1990 injuries -

Now, that is Mr Justice Mahoney, as my friend has

indicated. His Honour Mr Justice Mahoney, says in
his opinion the terms of clause 1 are to be

explained by the need to apply section 60G to pre-

September 1990 injuries. Mr Justice Handley, at

page 373, again between Band C:

In my opinion James Hardie & Co Pty Ltd v

Wootten, and the decision of the High Court to

refuse special leave, do not require this

Court to hold that the provisions of

s 60I(l)(a) are not incorporated ins 60F by

its reference to the plaintiff being unaware

of certain matters "at the relevant time".

So, the court then, have incorporated

section 60I(l)(a) as to relevant time within

section 60F - - -

DAWSON J: But have refused to incorporate section 60I in

relation to the nature of cause.

MR PUCKERIDGE:  Yes.

DAWSON J: That is the problem.

MR PUCKERIDGE:  And that is why Your Honour was somewhat

diffident in asking how it was that all these

sections could be collated, because these decisions

Hall 6 22/4/94

make it very difficult to determine what the

position is in this regard. Certainly relevant

ti.me, if it is not to be explained within the
meaning of section 60I, at the expiration of the

relevant limitation period, might then mean that it

is far more preferable, despite the heading as

appears in Schedule S, to read and interpret a

clause 4(4)(b) application without reference at all

to relevant limitation period in determining

relevant ti.me in section 60F.

DAWSON J:  If you were to accept that section 60F must

provide some limits to the operation of the

subdivision, taking into account the schedule, what

else could relevant time mean, other than, either,

during or at the expiration of the limitation

period?

MR PUCKERIDGE: At the expiration of the limitation period?

DAWSON J: At, or before the - - -

MR PUCKERIDGE:  At or before the end of the expiration of

the relevant limitation period - - -

DAWSON J: What could it otherwise be?

MR PUCKERIDGE:  - - - might possibly be an explanation.

Relevant ti.me, we would agree, just cannot stand up

in the middle of nowhere, but relevant ti.me, in

that sense, would simply be, we would submit, at

the end of the limitation period. You certainly

would not have to go any further than the words in

section 60I(l)(b), that is:

at the expiration of the relevant limitation

period or at a time before that expiration

when proceedings might reasonably have been

instituted.

You would simply have to look at the end of the

relevant limitation period and, in that respect, of

course, that is where the relevant limitation

period is raised in Hall, and becomes a significant
issue in that, we would submit, that certainly so

far as noise-induced hearing loss, all you would

look at is a question of the limitation period

being at the end of six years after exposure to

that noisy environment.

DAWSON J:  I am not sure that I understand it. If you only

look at the end of the limitation period, a

fortiori, if he knew before the end of the

limitation period, he knows at the end of the

limitation period. ·

MR PUCKERIDGE: That is if he knew.

Hall	22/4/94
DAWSON J: Of course.

MR PUCKERIDGE: That is the question, but the situation

would then be, it is submitted in the matter of

Hall, that the argument is that you would look at

six years from 1981 and determine in 1987 was he

aware of that situation and, in that case, that is

the case of Hall, the court looked at the question
as at July of 1988, and said, "Well, he was aware

of certain matters at that time, and we go back to

1982". We would submit, and the argument is, that

the limitation period would be looked at in 1987, which goes to the corollary issue, that the court

should have looked at the position as at 1987,

which may well have been a different issue also in

relation to potential benefit, which was considered

by the court.

DAWSON J:  We are ...•. two arguments, here, is it not? The

reason why, in Hall, the court said the limitation period expired earlier was because of the question of cause. They said, although he may not have

known of the connection between the employers act

or omission and his deafness, he knew he was deaf

and he knew it was caused by the noisy environment,

as far back as 1986.

MR PUCKERIDGE:  1986, yes.

DAWSON J: But that is a different argument. That is

dealing with the meaning of "cause".

MR PUCKERIDGE: That is a different argument in that regard; that is a question of cause. The Hall case raises,

as we submit, Your Honour, if the Court pleases, questions of the interrelation of section 60F, G

and I in the question of this limitation period,

and how, in fact, you do correlate them and - - -

DAWSON J:  I do not want to interrupt you, Mr Puckeridge,

but what Hall raises is whether F should apply at

all, and if it does, whether the word "cause"

should be interpreted by reference to I in order to
expand the meaning of the word "cause" to include

the connection between the employer's act and

omission and the injury.

MR PUCKERIDGE: It certainly raises that, Your Honour, and

it also raises this question as to "relevant time"

if we are to consider it; the relevant time being

the matter that Your Honour raised.	We cannot
leave "relevant time" up in the air.	It must have

some meaning and to have a meaning it is the

submission of the appellant in that regard that it

must go back to the first day as to what it means

and, again, that interpretation would certainly

leave "relevant time" just being looked at in

Hall 22/4/94

relation to the expiration of the relevant
limitation period, without reference at all to

section 60I(a).

All these matters, Your Honours, it is the

submission of the applicant in these matters, are

matters of general importance in relation to

noise-induced hearing loss and are of importance,

particularly in relation to that category of case, particularly when you look at relevant time so far

as section 60F is concerned. It cannot, of course,

so far as a matter of special leave or public

importance just be confined to that, but

nevertheless, if the Court pleases, it is submitted that this question of relevant time, as referred to

in section 60F, is a matter, together with its

relationship with section 60I, of general

importance in relation to all actions in which the

condition may occur over a period of years and the
plaintiff not become aware of it for some time
after the accrual of the cause of action.

Your Honour, then in relation to the potential

benefit argument, we would not wish to put a great
deal much further to the Court in relation to that,
other than in relation to special interest. What

has occurred in Hall's case is that a Court of

Appeal has determined that matter and that becomes

important, and it is related back, important to

determine whether or not the Court of Appeal was

correct in including that when they have taken an

incorrect, it is submitted, limitation period.

Now, the Court of Appeal, if it is correct in

including relevant time equals expiring of the

limitation period, or at a time earlier at which he

might have become aware of certain matters, has

included something further in the exercise of the

discretion just and reasonable which we would

submit should not be included, and it is in

irrelevance consideration and in the nature of

importance to determine what the actual

these actions, actions of this type with the being of

position is, we would submit, Your Honours, that it

is of importance to have guidelines in relation to

the matter.

If, in fact, the Court of Appeal is to be able

to tietermine this issue and come to a position in

relation to relevant time, as it did, then
guidelines as to potential benefit, or not, it is

submitted, is of public importance to determine

whether or not there be abuse of the exercise or

not as referred to in Knight's case.

Hall 9 22/4/94

I see the lights, if the Court pleases. The

other matters, of course, in relation to cause, as

Your Honour has indicated, it is - - -

MASON CJ:  Do not feel yourself limited in terms of the

submission you want to put on cause, Mr Puckeridge,

because you are addressing, as it were, in support

of three applications, so that we let it go beyond

20 minutes.

MR PUCKERIDGE: If Your Honour pleases. Then, in relation

to the matter of cause, the argument, if it could

be put in a nutshell, is that it should not be read

in a restrictive fashion. Why is it, it is

submitted, that cause should be confined to factual
cause of the injury? There is no reason, it is
submitted, as to why it should be so confined, and

it could include factual cause as well as cause of

injury related to acts or omissions of the

particular employer, and there is no need, it is

submitted, Your Honours, why that word should have

been so confined.

It seems odd that it should be so confined

when the words appear then in section 60G(2) of
Mjust and reasonable". Those words Mjust and

reasonable" in section 60G(2) would appear, in the normal course of interpretation, to involve a very

wide compass for the Court to consider.

DAWSON J: Except that for post-1990 injuries, where an

extension is sought, I does not operate to

limit G( 2).

MR PUCKERIDGE: Right, and that again raises a question

which my learned juniors were considering

throughout the period in relation to the argument:

is there a discrimination to some extent in respect

of actions which have accrued prior to

1 September 1990, and actions post-

2 September 1990? Are we in a position where
someone has knowledge of a factual cause of injury,	in the sense that they are aware that they have,
for instance, deafness, or any other injury, but
for the sake of this argument, deafness, and then subsequently becomes aware of - through perhaps advice - that there are remedies that could have
been made available; remedies which would have given that person a cause of action< and is unaware
of those fundamental, underlying material facts in
relation to such a cause of action.

TOOHEY J: Does that mean that you are giving "cause" an

operation that includes awareness of the right to

bring action?

Hall 10 22/4/94

MR PUCKERIDGE:  Yes, it could include that. Your Honour is

pointing to awareness at what time though? That is

in respect - - -

TOOHEY J: Well, I was picking up your reference to the word

"cause" and asking you what you meant by it.	You
said it went to awareness of acts or omissions,
which prompted me to ask, do you mean acts or
omissions giving rise to a possible cause of action?

MR PUCKERIDGE: Yes, and it was certainly a matter - - -

DAWSON J:  But you do not mean the worker has to come to a

legal conclusion.

MR PUCKERIDGE:  No, certainly not that, but just he becomes

aware of facts.

DAWSON J: The factual basis of what might turn out to be a

cause of action, yes.

MR PUCKERIDGE:  Yes, and in that situation, just looking at

the position of a person, pre- and post-

1 September 1990. First of all, pre-1/9/90, or

clause 4(4)(b) applications, as they have been

categorized under Schedule 5 of the Act; in that

situation, are we in the position that a person

under clause 4(4)(b) is aware of the factual cause

of injury, but has no knowledge of the underlying

facts which might found a cause of action is in a

worse position than a person post-1/9/90?

And, if the Court pleases, if may well be that

it be considered that he may be in a different
position, because if Plumb's case is correct, and

if section 60I(l)(a) is incorporated in any such

claim, that is, a claim under clause 4(4)(b) or

pre-1/9/90 position, then the position would be, or

could be argued, that the applicant would be able

to bring in factual cause of injury and of the acts

or omissions, unaware of the connection between the	personal injury and the defendant's acts or
omission, as referred to in (iii) in section I.
But if Dedousis is correct, then it would seem that he may not have to get to that position, or he would be prevented from getting to that position.
If Dedousis is correct, the applicant would fail if
he could not show factual cause of injury. You
would not go to section I(a), even though it has been held by Plumb to be incorporated in
section 60F.

DAWSON J:  For a 1 imi ted purpo·se.

Hall 11 22/4/94

MR PUCKERIDGE:  If, on the other hand, you have a situation

of a person post-1/9/90, it could be argued that
the applicant could go and prove and show factual

cause of injury and being unaware of the connection

between the personal injury and the defendant's act

or omission, and be entitled to succeed, raises a

matter, we would submit in that regard, then,

generally, of general importance in that regard.

Your Honour, they are the submissions of the

applicants in that regard - - -

MASON CJ: Yes, and they cover what you want to put in

relation to Butfield and Dedousis as well?

MR PUCKERIDGE:  Yes, Your Honour.

MASON CJ:  Yes. Thank you, Mr Puckeridge. Mr Toomey.

MR TOOMEY:  Your Honours, can I first point out to

Your Honours the scheme of the Act, or Division 3

of the Act, because what we are agitating here is subdivision 3 which of course is subdivision 3 of Division 3. subdivision 1 of Division 3 begins at

section 57 of the Act, and it is said:

The purpose of this Subdivision is to

provide a procedure for the extension of

limitation periods, based on the belated

discovery of material facts.

And, after the 1990 amendments:

retained only for causes of action that

accrued before 1 September 1990.

So, you have, in respect of personal injury cases,

where the injury is patent, occurring

before 1 September 1990, you have subdivision 1. limitation period"; the purpose of the subdivision

is set out in section 60A:	The purpose of this Subdivision is to provide
a procedure for a 5 year (maximum) extension
of the 3 year limitation period for personal
injury cases. It applies to causes of action

that accrue on or after 1 September 1990. So there you have, in respect of patent cases, this

is the procedure for cases where the injury is

patent after 1 September 1990. Then you go to

subdivision 3, and the purpose there is to provide

for latent injuries, both before and

after 1 September 1990.

Now, Your Honours, it is in that context that

one, we would respectfully submit, must read

Hall 12 22/4/94

subdivision 3, and one must also read subdivision 3

on this basis; that it is providing a limited right

to people whose cause of action arose

before 1 September 1990. After 1 September 1990
the right is ambulatory because, by section 60I, it

is extended continually for a period of three years

from the acquisition of knowledge. In respect of

causes of action arising before 1 September 1990,

what the legislation is doing is providing a window

of opportunity of three years, and three years
only, and it terminated on 31 August last, during

which people with causes of action before

1 September 1990 could apply for an extension of

ti.me.

Now, Your Honours, in that case, in our

respectful submission, it is not strange that there

would be differences in the manner in which the

legislature would deal with the once-and-for-all
provisions relating to the latent causes of action

before 1 September 1990, and the causes of action

ambulatory to infinity, arising after

1 September 1990, and it is to be remembered also,

Your Honours, that it would not be surprising if

there were restrictions on the causes of action

pre-1 September 1990 which would·be allowed, having

regard to the fact that there is no limitation

backwards.

Now, in respect of the other matters, the

post-1 September 1990 matters, you have this
three-year period always from the date of awareness

and, I suppose, it can be said also that that means

that it does not matter how many years afterwards

you find out, you have still got three years. But,

what the legislation was doing, it is respectfully

submitted, was saying, "All right, we will give you

a period of ti.me during which we can clean up the

tail of cases before 1 September 1990, and then

there is a procedure which will go on for ever in

respect of cases after that, and it is three years

from the ti.me when you acquired the knowledge".

Your Honours, if one looks, as a pure matter of drafting, at section 60F, it is said:

The purpose of this Subdivision is to provide

a procedure for a further discretionary

extension of limitation periods -

If you read that procedure as being section 60I, it

is indeed surprising, as Mr Justice Mahoney said in

Plumb's case, that the procedure was held in

Wootton not to apply to causes of action arising

before 1 September 1990. But if you read it as we

say you ought to read it, the procedure being what

you do under section 60G, then it is not surprising

Hall 13 22/4/94

at all because 60G, when invoked under schedule 4

for causes of action arising before

1 September 1990, application made more than three

years after the person became aware of the facts,

is simply referred to in bald terms - the right is

simply given in bald terms under Schedule S,

(4)(b):

The court may make an order under section 60G

or 60H in relation to cause of action referred

to in this clause, within:

(a) the period of 3 years referred to in

section 60I -

and that could apply, of course, for causes of

action arising before 1 September 1990, as late as

31 August 1990. So although it was a

pre-1 September 1990 action it could be brought

within the three years and still be brought before

1 September 1993. That is the section 60I period,

three years from the date of awareness. But if you

cannot bring yourself within that then you have a bare period of three years; the period commencing

on 1 September 1990 with, the Court of Appeal held

in Wootton, no reference to section 60I at all.

MASON CJ: But section 60G, along with section 60H, is the

provision that provides for the basic application.

MR TOOMEY: That is the procedure, Your Honour.

MASON CJ: And 60I then says what is to be taken into

account and places a limitation on the power to
make an order in certain circumstances. When you

come to clause 4 of Schedule 5, and there is a

reference to section 60G in (1) and again in (4),
why do you not read the references to 60G and, for

that matter, 60H as picking up 60I?

MR TOOMEY:  Your Honour, because 60I - you could only do

that by saying that the only purpose of the

schedule providing (4)(b) is to provide another

limitation period, not a difference in procedure.

If, indeed, one said, "Well, (4)(b) is simply

substituting in 60I the limitation period of

1 September 1990 to 1 September 1993", then you

could do it. But, in our respectful submission, it

is a curious thing to do because you could simply

have written it into the section. You could simply

have said in 60I(l), "Within 3 years of becoming

aware", subsection (2), "In respect of causes of

action arising before 1 September 1990 for the

3 year period for 1 S_eptember 1990 to

1 September 1993."

Hall 14 22/4/94

TOOHEY J: Except that Schedule 5 purports to deal with

transitional provisions, whatever that might mean

in the context.

DAWSON J: But why is not what the Chief Justice suggested

right: you exercise a jurisdiction under

section 60G, whether pursuant to the schedule or

otherwise, and the manner in which the jurisdiction

under section 60G is to be exercised is prescribed

by I?

MR TOOMEY:  Your Honour, in our respectful submission, the

difficulty about that is that if the procedure

referred to is the 60G procedure, section 60F, in

its second section, says:

This procedure is available for causes of

action accruing on or after 1 September 1990 -

that is plain, that is with the application of

section 60I -

and also (by the operation of Schedule 5) for
causes of action that accrued before that

date.

There is, in our respectful submission, no reason

to read the schedule as simply importing

1 September 1990 into the Act, otherwise why do you

need the schedule, why do you just say in

section 60I, "This applies to causes of action

arising both before and after 1 September 1990"?

The court, in Wootton, in which this Court refused

special leave, said, "Well, 4(4)(b) means what it

says".

It is said against that that in Plumb the

Court then trammelled such an application by the

application of section 60F. But we, with respect,

say that that is an obvious trammel, that this is a

subdivision -

MASON CJ: An obvious?

MR TOOMEY:  Trammel, I will spell it for Your Honour - - -

MASON CJ: No, I think I understand the word, it is its

application in the context of this case that I have

some difficulty grasping, Mr Toohey.

MR TOOMEY:  I will change the word, Your Honour. An obvious

fetter - I think, in fact, that was the phrase used

by the Court of Appeal - because the subdivision is

directed to it. It is not directed to patent

injuries, subdivisions 2 and 1 are. So one must

read the schedule as being caught by the section

which provides the purpose for the section.

Hall 15 22/4/94

Can I say this to Your Honours: if this

question is to be agitated, we would say that Hall

and Butfield are two singularly inappropriate cases in which they are to be explored.

MASON CJ: That was one question I was going to raise with

you and counsel on the other side. If the Court

were minded to grant special leave to appeal, then
what is the case that is the best appropriate

vehicle to litigate this point?

TOOHEY J: From whose point of view?

MR TOOMEY:	The one I am not in, Your Honour.
MASON CJ:	I thought you were going to say the one you were

in. I can see you are caught in a conflict of

disloyalties, Mr Toomey.

MR TOOMEY:	Yes, Your Honour. Your Honour, can I say this, that Hollins raises questions which are not raised
in Hall and Butfield. They are all related but
they do not raise exactly the same questions and Hollins does raise the base question of whether
section 60F applies to the pre-1 September 1990
causes of action which it seems is the real question.

Can I shortly remind Your Honours of the

facts: in Hall, the man started working for the

defendant in 1981; he was retrenched in mid-1982

and came back to work at the end of 1982; he was

working in a very noisy environment; in 1986 he

became aware that he was losing hearing; in 1988 he

was tested and found to have substantial hearing -

that is, seven years after he had begun employment;

and in 1988 had he taken advantage of the causes of

action which he knew to exist or ought to have

known to exist in mid-1988, that took him back to

July 1982, that is a year after he began work with

Brambles, and there is no evidence, and there was

no evidence before the primary judge and no

suggestion before the primary judge, that he had

suffered any hearing loss between 1981 and 1982.

Your Honours, the difficulty for the appellant

in this case, in our respectful submission, is

this, that the law of tort is that in respect of a

continuing tort a new cause of action arises every

time injury is caused. That is axiomatic but it is
to be found in a case which is cited in many of

these applications: Adams v Ascot Iron Foundary,

72 SR, where a man brought an action for silicosis.

MASON CJ: We are seized of your argument on that. It is

set out.

Hall 16 22/4/94

MR TOOMEY: But, Your Honour, that means, with great

respect, that my learned friend's argument, that

you must look at the expiry of the six year period

from when the cause of action first arose, has no

real application because all that happens at the

expiry of the six years is in respect of any injury

caused on the first day he loses his rights.

MASON CJ: Yes, it drops off successively.

MR TOOMEY:  Yes, Your Honour, it does. All the Court of

Appeal did in this case was to say, "Look, he found

out in July 1988. Any damage he suffered on any view of the case must have occurred between July

1982 and July 1988. It is fruitless to grant him leave in any case.". They could have granted him

leave because he was, indeed, unaware, until more

than six years, in respect of any cause of action

arising between March 1981 and 1 August 1982 and

they said they could have done so, but they said,

"What's the point?". That, in our respectful

submission, is an inappropriate case in which to

grant leave.

MASON CJ: 

It may be an inappropriate case in which to grant

leave but there is no reason why we cannot stand it
over pending the determination of a suitable case

in which to grant leave,if we are minded to grant

leave in· any case.

MR TOOMEY: 

Yes, Your Honour, except, Your Honours, that you

would still face the case that even if the point
were determined in favour of my learned friend it

would still be a sterile case.

MASON CJ: 

It may well be a sterile case but we cannot guard

against the possibility that there may be some

ramifications from a decision on an appeal, if one

of the cases goes forward.

MR TOOMEY:  Yes, Your Honour. Your Honours, in respect of

Butf ield - - -

MR PUCKERIDGE:  Your Honours, I am just indicating to my

friend, so far as the matter of Butfield is

concerned, that would seem to be inappropriate if

leave is to be granted.	We put more in the matter
of Hall and Dedousis.	If that is of any assistance

to my friend and the Court, in-that regard.

MR TOOMEY: Dedousis I am not in, Your Honours, but the

primary argument as to the inappropriateness of the

Court of Appeal having regard to the benefit of

granting leave is, we would respectfully submit, a

hopeless argument bec·ause that means that a court

says, "Well, does he strictly fall within the law",

and then when it turn to just and reasonable it has

Hall 17 22/4/94

no regard whatsoever to the question of whether or

not there is any point in granting leave. If, as

in this case, and in Butfield, the Curt arrives at

a conclusion that the plaintiff could not on any

reading of the facts - I mean, in Butfield, he knew

the cause of his injury in 1971, he knew the

failure was the failure to provide ear protection.

So even if you read it as subjeGt to 60I he could

not have succeeded in that. Taking my learned
friend's first argument in Hall, as to the

necessity of the court simply ignoring the question

of whether or not the plaintiff will receive any

benefit, Butfield is a perfect case to demonstrate

what extraordinary consequences that would give

rise to.

Your Honours, I think, as Your Honours have

indicated, Hollins gives rise to the full-blown

argument on sections 60F and 60I and I do not have

any more to put before that is argued.	May it
please, Your Honours.

MASON CJ: Thank you, Mr Toomey. Yes, Mr Brogan.

MR BROGAN:  Thank you, Your Honour. Your Honours, the only

additional matter that I would raise would be to

refer Your Honours to section 60I(l)(a)(iii) and to

suggest to Your Honours that even if the argument

that section 60I ought be read in conjunction with

section 60F, one cannot find in section 60I any

reference to negligence being a relevant

circumstance in considering the meaning of "cause",

because we submit, Your Honours, that "cause" means

factual cause. My friend submits that "cause"

means cause in the sense that the negligence of the

defendant was that which caused the injury. But

even if one goes through section 60I, one cannot

find any reference to negligence being a relevant

circumstance. So that we submit that "cause" means

factual cause in the sense that it means the link

between the conduct of the defendant and the injury

that was caused as opposed to cause being the

negligence of the defendant.

MASON CJ: By the way, I do not understand these frequent

references to 60I being read with 60F. The reason

why I say that is that 60F merely tells you what

the purpose of the subdivision is. So that,

essentially, you must be looking to what I would

describe as the operative statutory provisions

commencing with 60G. Then the question arises as

to whether you read 60F with them and I would have
thought that the answer is obviously, "Yes, you do

read section 60F with them". But the emphasis is

on reading 60F with the operative provision; it is

not on reading the operative provisions or one of

them with 60F.

Hall 18 22/4/94

MR BROGAN: Because - and this is probably the critical

question of construction - 60F can either be read

as a definitional provision or a gateway provision

and it has so far been read as a definitional

provision and very narrowly read and, we say,

correctly very narrowly read because that is what

this subdivision is all about. It is all about latent injury and one looks at what that means.

section 60F, we submit, says it does mean, we say, If latent injury did not mean what

"Why didn't the legislature tell us what it

meant?". It didn't, therefore why not conclude

that that is what it means?

DAWSON J:  But you cannot avoid the problem because even if

you read section 60F with 60G you have then got to

say what "cause of injury" means and that raises

the same problem. Does "cause of injury" mean what

it appears to mean in I or does it not?

MR BROGAN:  We submit it does but that whatever it does

mean, it does not mean what my friend says it
means; that is, knowledge of negligence. It can

mean both what section 60F -

DAWSON J:  It does not mean knowledge of a cause of action,

it just means knowledge of facts.

MR BROGAN: 

So it can mean both, both what 60F means and

what 601 means but what it does not mean, we say,
is what my friend says it means, that which is not

mentioned in the legislation. Thank you,

Your Honours.

MASON CJ:  Thank you, Mr Brogan. Do you wish to say

anything in reply, Mr Puckeridge?

MR PUCKERIDGE:  No, Your Honour. I think the matters have

been covered but, certainly so far as if the Court

was minded to choose one or two or more of the

cases as an appropriate vehicle by way of leave, we

would maintain that the appropriate ones are

certainly Hall and Dedousis, Hall raising the

question of relevant time as well as cause and the

matters as referred to therein. Butfield, however,

we would ask that it just remain and await the

determination.

MASON CJ: Yes, thank you, Mr Puckeridge. Call the Hollins

matters.

AT 11.16 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

Hall	19	22/4/94
UPON RESUMING AT 12.15 PM:

MASON CJ: The Court has decided that it will grant special leave to appeal in Dedousis v The Water Board. It will stand over the other applications in the

matters of Hall v Brambles Australia Limited,

Butfield v John Lysaght (Australia) Limited and

Hollins v Commercial Minerals Ltd & Ors to await

the determination in Dedousis. To that end, those

matters can be stood over to a date to be fixed.

As to Dedousis, Mr Puckeridge, your draft notice of appeal is exceedingly economical; so

economical, indeed, that it may not state all the

grounds of appeal that seem to be reflected by your argument. So you should give attention to it. You

need to appreciate that it will be necessary in the

grounds of appeal to cover clause 4(4)(b),

sections 60G, I and F. At the moment, I think the

one operative ground you have got is ground 2 which

deals with cause.

So that the grant of special leave will not be

limited to the grounds presently stated in the

draft notice of appeal but the Court expects that

the grounds in the appeal filed will cover, but not-

go beyond, the grounds that you presented in your

oral argument and written submissions in support of

the application.

MR PUCKERIDGE: If Your Honours please.

MR TOOMEY:  Your Honour, could I just ask Your Honours

whether that standing over applies to Butfield? I

understood my learned friend to have virtually

abandoned Butfield.

MR PUCKERIDGE:  Oh no.

MR TOOMEY:  Did he not?

MASON CJ:  No. We will make an order for punitive costs

against you if you are not careful, Mr Toomey.

AT 12.17 PM THE MATTER WAS ADJOURNED SINE DIE

Hall 20 22/4/94